United States Cas. Co v. State Highway Dep't Of South Carolina

• Decision Date: 21 February 1930
• Docket Number: No. 12842.,12842.
• Citation: 151 S.E. 887
• Court: South Carolina Supreme Court
• Parties: UNITED STATES CASUALTY CO. v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.

151 S.E. 887

UNITED STATES CASUALTY CO.

v.STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.

No. 12842.

Supreme Court of South Carolina.

Feb. 21, 1930.

Appeal from Common Pleas Circuit Court of Williamsburg County; S. W. G. Shipp, Judge.

Action by the United States Casualty Company against the State Highway Department of South Carolina. From an adverse order, defendant appeals. Reversed, and complaint dismissed.

John M. Daniel, Atty. Gen., and Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., for appellant.

F. R. Hemingway, of Kingstree, for respondent.

BLEASE, J. The respondent, a foreign surety company, doing business in this state, sued the appellant, state highway department, in the court of common pleas of Williamsburg county. The cause of action was based upon allegations to the effect that certain damages were sustained by an automobile of William Foor, on account of defects in a state highway controlled, managed, maintained, and supervised by the appellant; the suit being instituted under the provisions of Act No. 189 of the General Assembly of the year 1925 entitled, "An act to Amend Section 2948 of the Civil Code of Laws, Volume 3, Relating to Damages From Defective Highways, so as to Further Provide For the Payment of Damage or Injury Sustained Upon the Highways of the State." (34 Stats. 287). That act was approved April 14, 1925.

Respondent's suit was instituted a few days after the passage of Act No. 1055, of the year 1928, approved March 10, 1928, entitled, "An Act to Permit the State Highway Department to be Sued and Naming the Conditions under Which Suit May be Instituted, and Providing for Compromise or Settlement in Certain Cases." 35 Stats. 2055.

The respondent alleged settlement with Foor under the terms of a policy of insurance he carried with the respondent, and the suit against the appellant was sought to be maintained upon the principle that the respondent was subrogated to the rights of Foor against the appellant.

The appellant interposed a demurrer to the complaint on the following grounds:

"First: That the State Highway Department of South Carolina is an agency of the State Government and a suit against such Department is, in effect, a suit against the State in its sovereign capacity, and no action can be maintained against the State or one of its departments or governmental agencies without express legislative sanction therefor in conformity with the Constitution of the State, and this Court is without jurisdiction to hear and determine the alleged cause of action stated in the complaint for the reason that there is no. statute authorizing a suit against this Department, or creating any liability or cause of action against this Department for the acts alleged in the complaint.

"Second: That the statutory law of this State does not create any actionable liability on the part of the State Highway Department of South Carolina for the acts and conduct complained of in the complaint.

"Third: That the complaint does not show that a verified claim, giving the date, place where the injury or damage occurred and the amount claimed, has been filed with the State Highway Department as required by law.

"Fourth: That it appears upon the face of the complaint that the damage complained of was not due to any defect in any State highway, or by reason of the negligent repair of any State highway, or by reason of the negligent operation of any vehicle or motor vehicle in charge of the State Highway Department while said vehicle or motor vehicle was actually engaged in the construction or re-pair of any of the State highways, but that the damage complained of was sustained by reason of a contract of insurance voluntarily entered into by the plaintiff with a third party, to which the defendant was not a party and with which it was in no wise connected.

"Fifth: That the complaint fails to allege that the injury complained of was not caused by the negligence of the plaintiff, or of the driver of the automobile, and does not allege that neither the plaintiff nor the driver of the automobile did not negligently contribute thereto."

The demurrer was heard by his honor, Circuit Judge Shipp, who overruled all the grounds thereof, except the fifth. He sustained the fifth ground, but allowed the respondent the right to serve an amended complaint so as to cure the defects set out in that ground of the demurrer.

From the order of Judge Shipp, the appellant, state highway department, has appealed to this court. Its exceptions properly set up the contentions that the first, second, third, and fourth grounds of the demurrer should have been sustained and the complaint dismissed.

The suit here, while against a department of the state government, is actually one against the state itself. 36 Cyc. 915; Monarch Mills v. South Carolina Tax Commission, 149 S. C. 219, 146 S. E. 870.

Though the injury to the property, alleged to have been sustained, occurred while the act of 1925, supra, was of force, it is clear to us, under the authorities, that the respondent, if it had any right to recovery at all, could only proceed under the act of 1928, supra, as that enactment superseded the act of 1925, and became effective prior to the commencement of this suit. The act of 1928 contains a provision that "All Acts or parts of Acts inconsistent with this Act are hereby repealed."

"The consent of a state to be sued, being voluntary, may be withdrawn or modified by the state whenever it sees fit, even though pending suits may be thereby defeated; and upon the repeal of the statute authorizing the suit, the court in which the suit is pending can proceed no further therein." 36 Cyc. 915; Cope v. Hampton County, 42 S. C. 17, 19 S. E. 1018. (Italics added.)

The act of 1928 also contains the following provisions: "That a claim giving the date, place where the injury or damage occurred, and the amount claimed must be made out, sworn to, and filed with the State Highway Department within ninety days after the alleged injury or damage. Suit, if any, must be commenced, by the service of a Summons and Complaint, within six months from the date of the injury or damage: Provided, That the time limits imposed by this Section for giving notice and commencing suit shall not apply in cases of injuries or damages already sustained or claims already filed with the State Highway Department which may be compromised or settled under the provisions of Section 1 hereof." (Italics added.)

Our construction of the quoted language is that, while the time limit of ninety days for the filing of the required claim with the state highway department did not apply to the claim of the respondent in this case, since the injury and damage alleged to have been sustained by it occurred prior to the passage of the Act of Match 10, 1928, still the respondent should have filed the proper claim with the state highway department before it had the right to enter the suit. It is to be noted that "the time limits imposed" were not made applicable to those cases where injuries or damages had been sustained prior to the enactment of that law, but the requirement that the claim should nevertheless be filed with the state highway department before the commencement of suit is positive. In other words, as to injuries suffered before the passage of the act, there was a waiver by the state as to the time for the filing of claims, but there was no waiver of the requirement that claims as to such injuries should be filed.

The complaint in this case did not show that the claim required by the statute was filed with the state highway department, as required by the act from which we have quoted, and, for that reason, the third ground of the demurrer should have been sustained.

It is our opinion, also, that the other grounds of demurrer, which were overruled by the presiding judge, should have been sustained. In support of our view, we call attention to the following authorities:

"It is well settled that a state cannot be sued in its own courts, or in any other, unless it has expressly consented to such suit, except in the limited class of cases in which a state may be made a party in the supreme court of the United States, by virtue of the original jurisdiction conferred on such court by the constitution." (Italics added.) 25 R. C. L. 412.

"The consent of the state to be sued is entirely voluntary on its part, and it may therefore prescribe the cases in which and the terms and conditions upon which it may be sued, and how the suit shall be conducted; and the state can be sued only in the cases, manner, place, and courts prescribed by it. and one who seeks to avail himself of such consent must pursue the remedy as it is provided by law, and must fully comply with the prescribed terms and conditions, and it is the duty of the courts to see that the prescribed methods of procedure are followed." (Italics added.) 36 Cyc. 913.

"That a state cannot be sued in any of its courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary." (Italics added.) Lowry v. Thompson, 25 S. C. 416, 1 S. E. 141, 143.

"The consent of the state to be sued must be given in express terms or at least in terms so clear and unambiguous as necessarily to imply consent; and it has been held that statutes authorizing suits against a state, being in derogation of its sovereignty, should be construed strictly, although not so strictly as to exclude a case clearly coming within their terms, for the construction should be such as to carry out the legislative intent." (Italics added.) 36 Cyc. 913.

The case of Monarch Mills v. South Carolina Tax Commission, supra, also has some bearing here. In that case, it was admitted that a taxpayer was entitled to certain refunds on taxes collected from it by the state tax commission, and the refunds were made, but the tax commission declined to pay...